Government Can Put Anyone On Anti-Terrorism ‘No Fly’ List

After years of secrecy and speculation, the government’s criteria used for nominating people for placement in a terrorism database associated with the so-called “No Fly” list are now out in the open, thanks to an inside employee who leaked a nearly 200-page guidebook to Glenn Greenwald’s The Intercept last week.

The main revelation: Nearly anyone can be placed in the database at any time for virtually any reason.

The guidebook, last updated in March 2013, prohibits nominating individuals for the terrorism watch list based on “constitutionally protected activities,” including freedom of speech, exercise of religion, peaceful assembly and publication. But those protections can be superseded based on other criteria, such as an individual who expresses sympathy toward a group the U.S. government considers to be a terrorist organization or a student of a school or university that employs professors or other staff who are known to espouse ideologies and beliefs the United States deems radical.

A screen capture from the government’s 166-page manual on the nomination of individuals into the terrorism database. (Photo: Government document via The Intercept)

Spouses and children of individuals who are on the list can, themselves, be placed on the list if nominated by any number of special government “screeners” or agents working for just under a dozen government institutions. The guidebook even allows for dead people to be nominated to the database on the assumption that terrorists — or those associated with them — could recycle the identities of deceased individuals.

Three pages of the guidebook spell out what the government considers to be “terrorist activities,” and the descriptions range from the obvious to the ridiculous. Those accused of plotting to kidnap government officials, seizing naval ships, bombing public facilities and providing financing to designated foreign terrorist organizations fall under the definition of a person engaged in “terrorist activities,” but so do individuals suspected of destroying government property, possession of “plastic explosives” such as a C-4 or hacking into computers (“damage to a protected computer used in interstate or foreign commerce”).

There are nearly a dozen agencies that are capable of using the vague guidelines to nominate individuals for the terrorism database. Those nominations are given to the Federal Bureau of Investigation (FBI) for domestic individuals or the National Counterterrorism Center (NCTC) for persons abroad. The two agencies funnel the nominations to the Terrorist Screening Center (TSC), where agents determine whether or not a person should be included in the database.

The government contends that “concrete facts are not necessary” when determining whether an individual falls under the “reasonable suspicion” level for nomination and eventual inclusion in the database. Even individuals who are prosecuted and acquitted on terrorism charges (or charges based on crimes that the government considers “terrorist activities”) can still be placed in the database under the government’s definition of “reasonable suspicion.”

Dr. Rahinah Ibrahim knows this all too well. A clerical error (that the Department of Justice tried — and failed — to cover up on “homeland security” grounds) led to her being placed on the No Fly list in 2005. After a decade of fighting the government, Ibrahim became the first person to successfully have her name removed from the list in January, though she still appears on an immigration watch list for reasons unknown. The secretive nature revolving around her placement on the immigration list prevents her from obtaining a visa to return to the San Francisco Bay Area, where she had lived and worked prior to 2005.

Ibrahim isn’t alone. The federal government added more than 1 million names to the federal terrorism database within the past five years, according to figures cited by the Associated Press — and that number is growing. According to the AP, the government has upped the number of people added each year to the list, from more than 227,000 in 2009 to more than 468,000 last year.

The “general policy of the U.S. Government is to neither confirm nor deny an individual’s watch list status,” according to the guidebook (at least one court has ruled this “general policy” to be unconstitutional). Those who are placed on the list almost certainly realize they are in the database once they are selected for enhanced screening at an airport, denied the privilege of boarding an aircraft or have their work or travel visa to the United States rejected.

Ahmed Shihab-Eldin, an independent journalist who previously worked for the Huffington Post (disclosure: and someone this journalist considers a professional colleague and friend), has found himself on and off the list several times over the past few years. The first time he was detained at an airport, Shihab-Eldin says he was told by a Department of Homeland Security (DHS) officer that “there is somebody out there who was involved in an incident, and your profile … is a match,” warning that his detention would probably “keep happening.”

Shihab-Eldin was detained several more times before he went through the process of having his name removed from the list. According to his account, an officer told him last December that his name would be removed from the list, but he found himself detained again in March after arriving home from the World Economic Forum in Davos, Switzerland.

A different officer told him that “some incident happened between December 1 and today that has put you back on it,” but it’s likely that his name was never removed from the list as he had been told.

According to the guidebook, a redress procedure is in place for individuals who wish to complain about the placement of their names in the database. But the final say on whether or not a person’s name is ultimately removed lies with the Terrorist Screening Center — the same agency that puts the names into the database.

The government’s use of a self-check is no doubt problematic and flawed — and almost certainly by design. Though officials have long sought to keep information about the terrorism database a secret under the notion that disclosure could “harm national security,” the reality is far more depressing: The federal government simply does not want the public to know about the broad, sweeping power it has granted itself over the past decade under the stale guise of combatting “terrorism.”